COMMNR. OF CENTRAL EXCISE Vs. TIKITAR INDUSTRIES

JUDGEMENT

(1.) These appeals are directed against judgment and final order passed by the Central Excise & Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai (for short, the Tribunal') in Appeal Nos. E/1784/97-Bom. and E/1785/97-Bom., dated 2-1-2003 (Tri. - Mum.). By the impugned judgment and order, the Tribunal has confirmed the orders passed by the first appellate authority in setting aside the order which affirmed the show cause notices, issued by the adjudicating authority dated 1-2-1995,10/17-4-1995, 3-11-1995,19-6-1996 and 1-8-1996. The Assessee is a manufacturer of the 'Bitulux Insulation Board' known as Tikki Exjo Filler', which falls under the Chapter Sub-heading 4407.10 of the Central Excise Tariff Act, 1985 (for short "the Act"). The 'Tikki Exjo Filler' is obtained by the process of bituminization of the Insulation board which also falls under the same Chapter Sub-heading 4407.10 of the Act. In this view, the Assessee had filed a declaration under Rule 173G of the Central Excise Rules, 1944 ('the Rules' for short) inter alia requesting the adjudicating authority to classify the product in issue as an item falling under Chapter Sub-heading 4407.10 of the Act at nil rate of duty on the ground that there is no manufacture involved in the process of obtaining 'Tikki Exjo Filler' from bituminizing the Insulation board. The adjudicating authority vide its Order No. 6/96-97 dated 19-3-1996, after a detailed discussion of the claim made by the Assessee, had come to the conclusion that the product in question requires to be classified under Chapter Sub-heading 4407.10 of the Act and rate of duty would be levied at 10 per cent as the activity carried out by the Assessee amounts to manufacture. Aggrieved by the aforesaid classification of the product in issue at 10 per cent rate of duty under Chapter Sub-heading 4407.10, the Assessee had carried the matter in an appeal before the first appellate authority, who, by its order No. GS/132/B.111/97 dated 16-5-1997 had accepted the Assessee's stand that the rate of duty livable on the product in issue is nil rate of duty. For the reasons best known, that order of the appellate authority has attained the finality.

(2.) We need to notice yet another feature in these appeals that in the meantime, the revenue had issued several show cause-cum-Demand Notices to the Assessee inter alia directing the Assessee to pay the differential duty at 10 per cent, since the product in issue would fall under Chapter heading 4407.10. The Assessee had filed its reply inter alia taking a stand that the product in issue requires to be classified at nil rate of duty, since the Insulation Board and Bitulux Insulation Board are one and the same products. The adjudicating authority had confirmed the show cause notices issued by his Order No. 39/96-97 dated 19-6-1996 and No. 69/96 dated 12-9-1996.

(3.) The Assessee carried the matter in appeal before the first appellate authority, who, vide its order No. GS/133-134/B.III/97 dated 16-5-1997 had allowed the appeal and had set aside the show cause notices issued, inter alia, demanding the differential rate of duty from the Assessee in view of its earlier Order No. GS/132/B-III/97 dated 16-5-1997.